JIM FUGLIE: View From The Prairie — Maybe The Governor Shouldn’t Send Engineers To Represent Him

JIM FUGLIE: View From The Prairie — Maybe The Governor Shouldn’t Send Engineers To Represent Him

“Be careful what you wish for, because you just might get it,” the wise man said. And you might not like what you get, I might add.

That’s what I was thinking about four hours into last week’s second meeting of the newly reconstituted Little Missouri Scenic River Commission. I’ve been harping for a couple of years on the idea of bringing back what was supposed to be a watchdog group overseeing what goes on in the Valley of the Little Missouri River during an oil boom.

It started with a letter from Jan Swenson, executive director of Badlands Conservation Alliance, to the North Dakota DOT’s Matt Linneman in 2015, regarding the construction of a new bridge over the Little Missouri Scenic River on U.S. Highway 85. Jan reminded us “The Little Missouri River was established as a N.D. State Scenic River in 1975 by the Little Missouri State Scenic River Act.

The act’s Intent reads: “The purpose of this chapter shall be to preserve the Little Missouri River as nearly as possible in its present state, which shall mean that the river will be maintained in a free-flowing natural condition, and to establish a Little Missouri River Commission. The stated duty of the Commission is to maintain the scenic, historic and recreational qualities of the Little Missouri River and its tributary streams.”

When I read that, I went looking in the North Dakota Century Code for Section 61-29, Little Missouri State Scenic River Act. I had a foggy memory of a company called Tenneco wanting to build a coal gasification plant in the Bad Lands and to dam up a tributary of the Little Missouri to provide water for the plant, and of the North Dakota Legislature responding by passing the Scenic River Act in 1975, sending Tenneco home with its tail between its legs. The state had effectively said “No thanks, Tenneco, put your plant somewhere else.” Can you imagine anyone in state government using those words today? Hah.

Well, long story short, I wrote a bunch of articles about it, Doug Burgum got elected governor, I lobbied him through his chief of staff, and he reinstated the commission, directing the six Bad Lands counties to appoint new members, and now they’ve had two meetings. And accomplished nothing.

Actually, as far as the last meeting goes, accomplishing nothing is a good thing. They could have done something bad.

A bit of background. For the first 42 years of its existence, Section 61-29, the State Scenic River Act, prohibited the State Water Commission from issuing Little Missouri water permits for industrial use (read: fracking oil wells). Little Missouri River water could only be used for agriculture and recreation. Made sense. But the 2017 Legislature changed that, to allow Little Missouri water to be used for fracking.

Turns out the Legislature was only legalizing something that had been going on for 30 years or so. See, the Water Commission staff had been ignoring the law (it claimed it didn’t know about it, a story I bought until just a few days ago — more about that on another day) and the commission had issued more than 600 industrial water use permits from the Little Missouri, all in violation of the State Scenic River Act.

What the Legislature did was make legal what had been going on for decades — at the request of the Water Commission engineers who had been breaking the law. Burgum signed the bill. But in either a show of uncertainty, or just a show, he slapped a moratorium on that industrial use. That was in May of this year, just after he signed the bill. But then only a month later, he steered the State Water Commission, which he chairs, into lifting the moratorium. But in doing that, he said this was just going to be an “interim policy” because he wanted the newly appointed Scenic River Commission to “weigh in” on that action, to let him know how it felt about industrial use of Little Missouri River water. You still with me here?

Meanwhile, while we’re waiting for that commission to “weigh in,” permits for use of Little Missouri River water for fracking are being issued.

So at this week’s Scenic River Commission meeting, Water Commission engineer Jon Patch, the man who issues water permits (including those 600 illegal ones) brought the interim policy to the commission and spent two hours pleading with commission members to ratify it. Commissioners were skeptical, which in my mind, was “weighing in.”

In fact, when a motion was made by one commission member to approve the policy, it died for lack of a second. Only one of the nine commission members wanted to approve it. When newly elected commission chairman Joe Schettler announced the motion had died for lack of a second, there was a stunned silence at the commission table and among the 50 or so audience members.

Patch had just spent two hours fending off comments from audience members in opposition to industrial use of Little Missouri River water for fracking and pleading with some skeptical commission members, going on and on about how it would keep trucks off the road, making the roads safer and eliminating dust, although with no mention of how the oil companies were going to get the water from the river to their oil wells.

Patch brought along a power point slide to that effect, (as you can see, visible and audible disruption of the Little Missouri River Valley is not really a problem!), and when Jan Swenson rose from the audience to make a well-reasoned plea to delay action on approving the policy, Patch rudely put the slide up on the screen behind her for the audience to see. Frankly, I was surprised that no one booed, but audience members apparently had better manners than Patch.

Well, nether the audience members nor the commissioners were stupid enough to buy Patch’s argument. Finally, in an ironic twist, commission members and State Engineer Garland Erbele, Patch’s boss, made a motion to postpone action on the policy, a motion that was quickly seconded and passed unanimously. Erbele’s motion staved off further embarrassment for his staff engineer, who had just wasted two hours of everyone’s time, and also staved off the possibility of a motion to reject the policy, which likely would have gotten a second, and maybe would have passed.

By this time, the meeting, which had been billed as a two-hour gathering, was more than three hours old, and it took another hour and a half to finish, thanks to some silliness on Erbele’s part (or more likely his staff).

See, when Erbele’s staff was putting together the agenda for the meeting, there was really only one item to discuss — approving Patch’s policy — so to fill up the two hours, whoever did the agenda, with Erbele’s approval, had scheduled a bunch of bureaucrats to brief the commission members on some pretty much irrelevant stuff.

First, an assistant attorney general spent about half an hour, with a fancy power point presentation, going painfully through all the nuances of the state’s open meetings law, including changes made by the 2017 Legislature, when all she really had to do was say, “Hey, you guys, all your meetings are open to the public, and all minutes of your meetings are available to anyone who wants to read them.”

Then another engineer, this one from the Department of Transportation, repeated everything he had said at the group’s August meeting about the proposed new bridge over the Little Missouri on Highway 85, beside the North Unit of Theodore Roosevelt National Park.

It’s important for the commission to “weigh in” on that one, too, but there was no new news at this meeting, just a rehash of the previous meeting. The commission might decide to weigh in after it sees the Environmental Impact Statement in a couple of months. This presentation, and its power point slides, could have waited until then.

And then a fisheries expert from the state Game and Fish Department got out his power point slides and talked for a long time about “endangered” fish in the Little Missouri. Duh. He could have just said, “There are no fish in the Little Missouri because it’s only 6 inches deep in most places in the summer and it freezes to the bottom in winter.” Yeah, that might endanger the fish.

It was a really bad miscalculation on the part of the Water Commission staff, and it is time for Parks Director Melissa Baker to wrest control of this board from the engineers, the way three Parks directors — Doug Eiken, Bob Horne and Gary Leppart — before her did. There were no meetings during the most recent Parks Director Mark Zimmerman’s term, and only one or two during his predecessor Doug Prchal’s term.

But give those ranchers on the commission credit — they stuck it out for 4½ hours, even though there were a hundred things they could do at home, and most of them just wanted to get into the bar for a quick Jack and Coke before heading back to the ranch.

The three Bismarck bureaucrats on the commission — Erbele, Baker and Dave Glatt from the Health Department — are probably used to long government meetings, but I bet two of them called Erbele the next day and said, “No more of that.” The meeting, which had begun at 4 p.m. Bismarck time, ended at 8:30 p.m., and they still had to drive home from Dickinson.

Here’s the bottom line: Gov., Burgum wants the Little Missouri River Commission, whose members are mostly Little Missouri River Valley ranchers, to tell him how they feel about the interim policy adopted by the State Water Commission, which allows temporary industrial water permits to be issued to draw water from the Little Missouri river for fracking. A reasonable approach by the governor. It might have been a good thing for the governor to come to the meeting, sit down with the commissioners and talk about it. That’s the way to find out how the Commission members feel.

Instead, he had his state engineer bring in one of his staff who, frankly, came off as a bit of a schoolyard bully, with a statement, all written up, and just asked them to approve it. It read:

“The Little Missouri River Commission has received and considered Temporary Water Permits Revised Interim Policy in the Little Missouri River Basin developed by the office of the State Engineer and presented to it at the August 19, 2017 meeting. The Little Missouri River Commission concurs with the policy and recommends that the State Water Commission adopt it as a permanent policy of the State Water Commission and the State Engineer.”

The Commission said no, we’re not approving that. At least not today.

Well, good for them. Meanwhile, the “interim” policy continues to allow issuance of fracking water permits from the Little Missouri. I don’t know if that’s what the governor wants. But it’s what he’s got, without the blessing of those who matter most — the ranchers in the Little Missouri River Valley. I’m not sure what will happen if the Scenic River Commission says “No” to the governor. Will he back off on issuing fracking permits?

There’ll be another meeting of the Little Missouri Scenic River Commission in a couple of months. Maybe commissioner will discuss the policy then. Or maybe next time the governor, if he really does want their input, will come and sit down with them ask them what they think. Wouldn’t that be something?